The Justice Department Is Investigating the Press Pool Boycott While Defending the Ban That Triggered It

Five television networks received Justice Department demands for records on Friday, October 9. The demands cover how the White House press pool was formed and how it has operated recently. The inquiry sits with the Antitrust Division, which is examining whether ABC, CBS, CNN, Fox News and NBC violated the Sherman Act. The question is whether they broke the law by suspending coverage of President Donald Trump's events in solidarity with CNN. No charge has been announced, and the department describes the step as an investigation.

What Section 1 covers

Section 1 of the Sherman Act, codified at 15 U.S.C. 1, declares illegal every contract, combination or conspiracy in restraint of trade among the states. It is also a criminal statute. A corporation convicted under it faces a fine of up to $100 million, and an individual faces up to $1 million, ten years in prison, or both.

Emily Covington, a spokesperson for the Antitrust Division, put the department's position in a statement. Newsweek and TheWrap report that it says the pool members "proudly" boycotted coverage of White House events. CNN's copy of the same statement leaves that word out.

“Group boycotts among commercial competitors can violate the Sherman Act.”

How the boycott worked

The pool is the arrangement under which one network crew covers a presidential event and shares the footage with every other outlet. CNN describes it as a product of necessity from the three-network era. On September 18, Trump announced that CNN, MS NOW and Politico would be barred from the White House, citing what TheWrap quotes as "purposely negative stories."

ABC, CBS, Fox News and NBC then declined to fill CNN's seat in the rotation. The pool chair has said no replacement pool was put in place, according to CNN, and the stand-off lasted several days.

Two divisions, one dispute

While the Antitrust Division looks at the response to the ban, lawyers from the Civil Division are defending the ban in federal court. At a hearing on Thursday, October 8, Michael Velchik, a senior counsel in that division, told Judge Kelly that access to the White House is a privilege and not a right. CBS News reported that he added that the president had concluded the outlets' reporters failed to meet minimum journalistic standards.

Kelly, who on September 24 issued a temporary order restoring the reporters' access, called the due process question "probably the biggest hurdle" for the government. He asked whether portraying the administration in a negative light violates minimum journalistic standards. He also said it would be an "uphill climb" to find precedent for a decisionmaker who gives one reason publicly and another in court. Ted Boutrous, representing the three outlets, argued that the standards allow punishment of reporting the administration dislikes. The temporary order expires Tuesday, and Kelly has promised a ruling by then.

Precedent cuts both ways

The press has no exemption from the statute. In Associated Press v. United States, decided in 1945, the Supreme Court held that AP bylaws blocking nonmember newspapers from buying AP news violated the Sherman Act. Justice Hugo Black wrote that the First Amendment does not sanction repression of press freedom by private interests. He added that the amendment rests on the assumption that the "widest possible dissemination of information from diverse and antagonistic sources" is essential.

A boycott with a public-interest motive is a harder question. In FTC v. Superior Court Trial Lawyers Association (1990), the Court called a boycott by court-appointed lawyers in Washington "a classic restraint of trade." It rejected their social justifications because their immediate objective was higher pay. It distinguished NAACP v. Claiborne Hardware, the civil rights boycott, where participants sought equal treatment. That distinction marks where an inquiry like this would turn: whether the networks acted for commercial advantage or to protect access. The department has not said which theory it is pursuing.

The networks have given a public-interest answer. In a joint statement, they said the public has a vital interest in receiving accurate, independent information about its government. ABC, CBS, CNN, Fox News and NBC declined to comment or did not respond to CNN's requests on Saturday night.

“This is not even in the same zip code of an antitrust violation. It's literally freedom of speech.”

Bruce D. Brown of the Reporters Committee for Freedom of the Press told CNN the investigation "appears to be a pretext" for obtaining records. He said the records concern coverage during a media ban the president himself put in place. That is a characterization of motive, and the department has not responded to it in the reporting reviewed.

What is not known

The document demands themselves have not been published, so this account of their scope rests on secondary reporting. Coverage this weekend does not cite an earlier Antitrust Division inquiry into a press pool. The only Supreme Court precedent on news organizations and the Sherman Act reviewed for this story is the 1945 AP case. No deadline for the networks' response has been reported.

Tuesday's ruling will settle one of the two proceedings. The other has no date attached to it.